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State v. Newman

Supreme Court of Georgia

April 29, 2019

THE STATE
v.
NEWMAN.

          MELTON, CHIEF JUSTICE.

         Following a jury trial, David Miller Newman, a previously convicted felon, was found guilty of two counts of felony murder and aggravated assault, three counts of possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon in connection with the shooting death of Jason Wood and for shooting at Candace Shadowens. Newman filed a timely motion for new trial, and the trial court granted the motion on the grounds that (1) the trial court erred in failing to charge the jury, sua sponte, on the use of force in defense of habitation (see OCGA § 16-3-23), and (2) trial counsel was ineffective for failing to request a charge on that defense. The State appeals from this ruling (see OCGA § 5-7-1 (a) (8)), and, for the reasons that follow, we reverse the trial court's decision and remand this case for further proceedings to address any remaining claims that were not addressed in the trial court's original order on Newman's motion for new trial.

         1. The evidence presented at trial reveals that, in June, 2016, Newman worked as a supervisor at a company called Salt Creek Couriers ("Salt Creek"). On the morning of June 16, 2016, Wood, one of the employees of Salt Creek, failed to report for work, and Newman went to Wood's home and fired Wood from Salt Creek. Newman took the keys to a company van from Wood and planned to return later to retrieve the van from Wood's home. Although Newman did not have any violent confrontation with Wood at that time, he nevertheless decided to retrieve a handgun before returning to Wood's house based on "a gut instinct." Newman returned to Wood's home around 6:30 p.m. that night in a black van with his friend, Carolee Pritchard, one of the owners of Salt Creek, to retrieve the white company van.

         Wood's girlfriend, Shadowens, was at home with Wood when Newman and Pritchard arrived. Newman spoke with Wood outside the house, and, at some point, Newman pulled out his gun. When Shadowens came outside, Wood told her to call 911 because Newman had pulled a gun on him. As Shadowens started to dial 911, Newman said, referring to Shadowens, "I'll kill that b**ch." Shadowens replied, "If you're going to shoot somebody, just shoot somebody, you fat b**ch." Newman then shot Wood in the chest as Wood attempted to push Shadowens out of the way. The shell casing from the gunshot was later found in some grass that was, according to the crime scene investigator, "pretty far from where the van would [have been]," which was consistent with the gun being fired outside of the van. Further, almost all of Wood's blood was located on the outside of the van, which indicated, according to the State's forensic pathologist, that Wood was not inside the van, but outside of it, when he was shot. A neighbor of Wood's, Jeremy Zottola, had a surveillance system that captured audio of the gunshot, and that captured audio of Shadowens shouting "If you're going to shoot somebody, just shoot somebody, you fat b**ch," just before the gunshot. The video from the surveillance system only showed Newman and Pritchard driving away from the scene in the black van and the white company van. Another neighbor of Wood who was a registered nurse heard the gunshot and attempted to render aid to Wood at the scene, but Wood died from his gunshot wound. When officers arrived, Shadowens told them that Newman had shot Wood.

         While fleeing the scene in the company van, Newman threw his handgun out of the window and called 911. The gun was later recovered by police. During the 911 call, Newman claimed that Wood had a gun and shot at him. The police pulled Newman over while he was still on the phone with 911, and he then informed police that he did not know what happened and that he just heard a gunshot and drove off. When Newman was later interviewed by police, he changed his story again, this time claiming that neither he nor Wood had a gun, and that when he heard a loud boom he left the scene. Newman was then arrested, and, when he was interviewed for a second time by police, he changed his story again, now admitting that he had a gun, but claiming that the gun accidentally went off when Wood hit the van door, which jarred the gun.

         On September 14, 2016, Newman was charged with malice murder; two counts of felony murder (predicated on aggravated assault and possession of a firearm by a convicted felon); two counts of aggravated assault; attempted murder of Shadowens; four counts of possession of a firearm during the commission of a felony; and possession of a firearm by a convicted felon.

         After being indicted, Newman changed his story once more, saying in an interview with the prosecuting attorney that, after he arrived at Wood's house with a gun, Wood got on his phone, saying that he was dialing 911, and also saying to Newman that he was going to "get [his] money" from Newman. Newman said to Wood, while holding the gun, "Don't make me shoot you. Go inside." Wood then entered the house and re-emerged with Shadowens behind him, and Shadowens was carrying a baseball bat. Newman claimed that he got into the company van and put the gun on his lap. Then Shadowens opened the door to the van, which allowed Wood to jump into the van, and, as the gun started to fall from Newman's lap, Newman grabbed it and it accidentally went off. Pritchard asked Newman if he had shot Wood, and Newman said, "No, the gun just went off."

         At trial, Pritchard testified that, after Newman got into the company van, Shadowens opened the door to the van and Wood was inside the van when the gunshot went off. Then Pritchard saw Wood run back towards the front of his house. Newman testified in his own defense and changed his story yet again. This time he claimed that, when he arrived at Wood's home, he placed $100 in an envelope and put that envelope inside the cup holder of the company van. Newman alleged that Wood threatened to rob him and that Newman pulled out his gun, cocked it, and said, "No, you ain't." Wood then stopped coming at Newman and got on his phone to call 911. Newman then got into the company van, put the gun on his lap, and tried to lock the van door, but the door did not lock. Then Wood and Shadowens ran to the van and Shadowens opened the door to the van while Wood started to get into the van. The gun then slipped from Newman's lap after Wood hit him and it fired when Newman reached to grab it. Newman believed that the safety was still on and that the gun "just went off" without him trying to shoot it.

         The trial court charged the jury on the defenses of self-defense and accident, but did not charge the jury on the use of force in defense of habitation, and no such charge was requested at trial.[1]

         When viewed in the light most favorable to the jury's verdict, the evidence presented at trial was sufficient to authorize a rational jury to reject Newman's claims of accident and self-defense and to find him guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560). See also Revere v. State, 302 Ga. 44 (1) (805 S.E.2d 69) (2017).

         2. The State contends that the trial court erred in granting Newman's motion for new trial on the bases that (a) a jury charge on the use of force in defense of habitation should have been given at Newman's trial, and (b) trial counsel was ineffective for having failed to request such a charge. As explained more fully below, because the record reveals that the failure to give a charge on the use of force in defense of habitation resulted in no harm to Newman, we agree with the State that the trial court erred in concluding that the failure to give such a charge warranted the grant of a new trial and in concluding that trial counsel was ineffective for having failed to request one.

         (a) Because Newman failed to object to the trial court's failure to charge on defense of habitation, we must determine whether the trial court correctly concluded that the failure to give a charge on defense of habitation constituted plain error such that Neman was entitled to a new trial. See State v. Johnson, - Ga. - (Case No. S18A1275, decided Feb. 18, 2019). See also OCGA § 17-8-58 (a) and (b). In order to show plain error:

First, there must be an error or defect - some sort of "[d]eviation from a legal rule" - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it "affected the outcome of the trial court proceedings." Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error - discretion which ought to be exercised only if the error "'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'"

         (Citation and emphasis omitted.) State v. Kelly, 290 Ga. 29, 33 ...


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